N.A. & Ors. v. Govt of NCT of Delhi & Ors.

217. As noted in the concerns raised during the Parliamentary debates concerning the MHA-2017 and also from the lack of designated authorities explained above, there are gaps unaddressed by the legislations. The social fabric of family structures in India ought to be considered. In the same vein, the Court notes that the MHA-1987 had laid down certain standards and factors to be considered while determining the “best interest” of the mentally ill person. However, under RPWD-2016 and the MHA-2017, no guidance exists as to what would constitute the “wills and preferences” of the person. Under Section 14 of RPWD-2016, limited guardianship is for a specific period, a specific decision and a specific situation, in accordance with the will of the PwD. Even in the proviso to Section 14(1), the factors to be considered for providing total support are conspicuously absent. The MHA-2017 has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the moveable/immovable property of the mentally ill person is to be taken care of. Thus there is a clear statutory vacuum.

218. On the issue of Maintainability therefore the following factors are noted:

(i) The RPWD-2016, the MHA-2017 or the RPWD

(ii) Providing ‘total support’ is contemplated under

(iii) However, the power under Section 14 of RPWD-

2016 is to be exercised by the District Court or the Designated Authority. Currently, under the RPWD (Delhi) Rules-2018, no Designated Authority has been appointed under Section 14.

(iv) Under the proviso to Section 14(1) of RPWD,

(v) The various institutions and establishments contemplated under RPWD-2016 do not appear to be fully operational.

(vi) There is a clear legal vacuum in respect of providing total support to a person with disability who requires such support. No precedent has been cited either under the RPWD-2016 or MHA-2017 in this regard.

(vii) There are several gaps and concerns in the two legislations, i.e., RPWD-2016 and MHA-2017. All the required institutions under these statutes are not fully set up and functional.

(viii) In the present case, the condition of Mr. DMP is such that the Court has to take a comprehensive view under both legislations on two aspects: (a) In respect of his medical care and treatment; and (b) For management of his financial affairs, both movable and immovable assets which are valued at more than Rs. 3000 crores.

(ix) Above all, this Court is exercising jurisdiction under Article 226/227 of the Constitution of India, which is a jurisdiction conferred by the Constitution of India and in various judgments of the ld. Supreme Court, the parents patriae jurisdiction is clearly vested in Constitutional Courts. The present case falls in the category of exceptional circumstances, as held in Shafin Jahan (supra).

219. In any event, this Court is of the opinion that the solemn nature of the said jurisdiction having been repeatedly recognised by the Supreme Court, the question as to which Court has to exercise it and in what manner is one of mere procedure. So long as the “wills and preferences” of the mentally ill person and the other factors set out in the rules are borne in mind by the Court exercising parens patriae jurisdiction, it cannot be held that the High Court exercising power under Article 226 is denuded of power in view of the provisions of the RPWD-2016 Act or the Rules thereunder.

220. Thus, both, while exercising jurisdiction under Article 226 and even in terms of the proviso to Section 14(1) of the RPWD-2016 and under the MHA-2017, this Court has the power to entertain the present petition seeking appointment of a guardian.

(ii) Who can be the guardian/nominated representative? (Legal Position)

221. As discussed earlier, under Section 14(4) of the MHA-2017, the nominated representative can be any person who may have been chosen by an advance directive. In the absence of an advance directive, the nominated representative can be a relative. It is only if a relative is not available or is not willing to be the nominated representative, that in the order of preference, a care-giver or thereafter a suitable person can be appointed. A relative as defined under the MHA-2017, as extracted above, as a person related to the person with mental illness by blood, marriage or adoption. On the other hand, the RPWD-2016 does not define who can be a guardian. While some institutional mechanisms are contemplated under the RPWD-2016, the existence and the viability of such institutions has not been addressed before this Court during the course of submissions by either party. Under the RPWD (Delhi) Rules- 2018, the preference of merit for appointment as a limited guardian is contained in Rule 7(6). The preference therein is to blood relatives, adult children, siblings, spouse, and it is only thereafter that care givers or other personalities can be considered. There, the common principle seems to be preference to relatives over caregivers or other unrelated people.

222. In the opinion of this Court, the nominated representative or total support arrangement or guardian need not always be an individual. Guardianship could be exercised by even a guardianship committee, depending upon the facts, as long as such a committee would be an appropriate measure for enabling the person to exercise his legal capacity, as per his will and preferences. If the mentally ill person requires complex medical decisions to be taken, has an expanse of moveable/immovable assets, and requires management of complex financial affairs, and the Court is of the opinion that this entire function cannot be performed by one individual, a committee can be appointed.”

14. Subsequent to the decision in S.D. v. GNCTD (Supra) the Bombay High Court in W.P. (C) 1266/2021 titled Lubina Mohamed Agarwal & Ors. v. Union of India & Ors. decided on 13th December, 2021 has also considered the same issue and has observed as under:

15. We also chose to reproduce paragraphs 17.[1] to 17.[3] of the decision in Salgaonkar below: “17.[1] In that case it was held that when a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is a physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of guardian. In the circumstances it was held that statutes like the Guardians and Wards Act, 1890, Mental Healthcare Act, 2017 etc. would not applicable to persons in a comatose condition or in a vegetative state. It was also held that there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state. 17.[2] On the crucial issue as to relief that may be granted to the petitioner by invoking writ jurisdiction under Article 226 of the Constitution of India, it was noticed that there is no statutory provision governing the field relating to appointment of guardian of a person lying in a comatose condition or in a vegetative state. This Court referred to and deliberated upon the doctrine of parens patriae whereafter it was held that in a case like this it is the court alone as the parens patriae which must take the ultimate decision though views of the near relatives, next friend and doctors must be given due weightage. After referring to decisions of various High Courts including our High Court, this Court examined the width and plenitude of the power of the High Courts under Article 226 of the Constitution of India and also relied upon the decision of the Supreme Court in Aruna Ramchadra Shanbaug Vs. Union of India,

High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. It was held as under:

16. Sitting singly one of us (GS Patel J) had a similar application though in a suit on the Original Side in Nitin Thakker and Another v State of Maharashtra and Ors. By an order dated 13th August 2020, the Court appointed a Senior Advocate of this Court as the guardian of solicitor who had no family at all but was himself suffering from dementia. In paragraph 20, the decision said:

17. This was also considered in Rajni Hariom Sharma.

18. By a previous order dated 12th August 2021, Kamar was to be examined by specialist at the JJ Group of Hospitals. That has been done. We have the reports before us today. She was examined on 18th August 2021. She was found to be conscious but minimally cooperative and communicative. She was bed-ridden. Her attention was minimal. She had a forward attention of span of two and a nil backward attention span. She was hard of hearing and could follow only very simple commands, not complex instructions. Her speech was incoherent and reduced in tone and output. Her concepts and judgments were impaired, as was her memory. The conclusion was that she suffers from advanced dementia, needs assistance in her day-to-day activities and will require further investigation and monitoring. The reports states that the Indian Disability Assessment Scale Score was 20, suggestive of profound disability.

19. In these circumstances, we are inclined to grant the relief Mr Khambata seeks, but subject to certain safeguards. To begin with, we make it clear that we are not disposing of this Petition. It is also not our intention that the directions that follow are either rigid or constitute a precedent of any kind. Given the state of the law, which we have briefly set out above, each case will need to be addressed on its own merits. Indeed, we would suggest that in matters like these, no two cases will be exactly alike ever. Each case will require a differently calibrated response from the Court. We also intend to monitor Kumar’s condition and will list the matter periodically for updates. The present order may then continued or modified as Required.”

15. In the present case, the initial will and preference of the Ms. K.A. was to appoint her son to deal with her assets. She did this by executing a General power of Attorney in his favour. But unfortunately the son has predeceased her. Thus, as on today, considering her physical and mental state, it is clear she is even unable to express her will or her preference. The Court in these circumstances has to step in under the parens patriae jurisdiction. Her immediate family consists of her daughter-in-law who is also a senior citizen and her three grandchildren. Ld. Counsel for the Petitioner has assured the Court, under instructions, that she does not have any siblings and thus there are no other legal heirs. In view of the facts of this case as also the three status reports placed on record, this Court is convinced that Ms. K.A. is unable to take decisions in her interest and is in a seriously declined mental and physical state. Conduct of any further medical tests on her would in the opinion of this Court be futile, as the facts which have emerged from the three status reports are consistent with each other as to the physical and mental condition of Ms. K.A. Thus, no further medical tests or any other test are being directed as no such tests would be required in the present case.

16. Insofar as the persons who ought to be appointed as her guardians are concerned, Ms. K.A. does not appear to have any other legal heir or children except the ones who are arrayed as Petitioners and Respondent No.2. Further, the affidavit of no objection of the Respondent No.2 appears convincing. The said affidavit of no objection reads as under: “I, Mr. U.A., son of Late Mr. J.A., resident of 4, Colonial Road, Scarsdale, New York 10583, United States of America, aged about 38 years, hereby solemnly affirm and state as under:

1. The captioned writ petition has been filed by the Petitioners, i.e., my mother Mrs. N.A. and my sisters Ms.S.J. and Ms. M.A., seeking guardianship of my grandmother Mrs. K.A., on account of her old age and deteriorating health conditions.

2. I have no objections to the Petitioners being granted the aforesaid guardianship as prayed for in the petition or any other relief/directions in favour of the petitioners.” The grandson has thus given his no-objection to the Petitioners being appointed as guardians.

17. In these circumstances, the Court exercising parens patriae jurisdiction directs as under:

(i) A Guardianship Committee consisting of the Petitioners, is appointed as the caregiver and the guardian for Ms. K.A. It shall act as nominated representative of Ms. K.A. under the Mental Health Act, 2017 and for providing support to Ms. K.A. under the RPWDA, Act, 2016.

(ii) The Guardianship Committee shall take unanimous decisions in respect of the affairs of Ms. K.A. including her medical treatment, healthcare, daily living, financial affairs, etc.

(iii) The Guardianship Committee shall be free to deal with all the movable and immovable assets of Ms. K.A. Specifically, the guardianship committee is permitted to deal with the following assets and the bank account of Ms. K.A.: Immovable properties owned by Mrs. K.A. Property described as C-110, NDSE, South Extension Part II, New Delhi - 110049. Movable properties owned by Mrs. K.A. Bank account maintained with the Lajpat Nagar branch of HDFC Bank bearing account no:

02941000025309.

(iv) If any asset of Mr. K.A. is being disposed of, the consent of

18. The aforesaid directions have been passed on the strength of the Petitioners’ submission and averments before this Court that there is no other legal heirs of Ms. K.A except the ones who are arrayed as Petitioners and Respondent No.2. The Petitioners shall be bound by the said submission.

19. With these observations, the present petition, along with all pending applications, is disposed of.

20. No further orders are called for.

PRATHIBA M. SINGH JUDGE JANUARY 4, 2023/dj/kt